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Jagjit Chandra Vs. Th. Avtar Singh - Court Judgment

LegalCrystal Citation
CourtJammu and Kashmir High Court
Decided On
Reported in1971CriLJ300
AppellantJagjit Chandra
RespondentTh. Avtar Singh
- .....alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the this case it is not denied that the accused is a gazetted officer who has been appointed by the government and who can be removed only from service by the government: although this position was admitted throughout, the petitioner nontheless wanted to place on the file an order of his appointment as a gazetted officer. so we have to proceed on this assumption that the petitioner is an officer, who cannot be removed except by the order of the government. the only point about which there is so much of conflict is whether the present action of the accused can be said to have been.....

J.N. Bhat, J.

1. This is an application seeking to revise the order of the learned Sessions Judge, Jammu, dated 28.2.1970 whereby he has set aside the order of discharge passed by the Sub-Registrar, Judicial Magistrate 1st Class, Jammu and sent the cage back to him for rehearing; or in the alternative Under Section 561 A, Criminal P.C., seeking the quashing of the original proceeding in the complaint filed by the complainant against the petitioner Under Section 504, R. P.C.

2. The original complaint of the respondent states that the respondent complainant was a salesman in the wholesale Co-operative Limited, Jammu, Rehari Branch; that there was an accusation of shortage of goods entrust, ed to his care and he was directed to remit Ra. 3,040 to make up the loss. This sum was deposited by the respondent. But even afterwards he was asked through a notice to deposit Rs. 4,200 in the office of the accused petitioner by 12.7.1969. On that date he went to the office of the accused who turned up at 5-30 P.M. As soon as the complainant appeared before the accused with his objections, the accused tore the objections and used abusive language towards the complainant and said further 'ma jawe Chor ajate Hain.' (Original script in urdu transliterated-Ed.)

The complainant restrained himself otherwise there would have been a breach of peace. Process was issued on this complaint by the trial Magistrate against the petitioner accused Under Section 504, B. P.C. When the accused appeared before the Sub-Registrar, Judicial Magistrate, ho made an application before him in which among other pleas he raised a plea that as he was an officer appointed by the Government, prosecution could not be launched against him without the sanction of the Government Under Section 197, Criminal P.C. This plea prevailed with the trial Magistrate who discharged the accused. A revision was preferred before the Sessions Judge, who set aside the order of discharge and sent the ease back for trial. The petitioner therefore now prays for the reversal of the order of the Sessions Judge or in the alternative for quashing the entire proceedings against him as no offence is disclosed from the allegations in the complaint against him.

3. I have heard the learned Counsel for the parties. Two points arise for consideration in the case. Firstly whether under circumstances of this case, sanction of the Government to prosecute the petitioner was necessary before the launching the prosecution and secondly whether the case is otherwise fit in which criminal proceedings against the petitioner should be quashed. I shall take up both these points separately.

4. There is so much of case law Under Section 197, Criminal P.C., that it is very difficult even to go through all the decided cases. Section 197, Criminal P.C. reads as under :-

(1) When any person who is a............or when any public servant who is not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government.

In this case it is not denied that the accused is a gazetted officer who has been appointed by the Government and who can be removed only from service by the Government: Although this position was admitted throughout, the petitioner nontheless wanted to place on the file an order of his appointment as a gazetted officer. So we have to proceed on this assumption that the petitioner is an officer, who cannot be removed except by the order of the Government. The only point about which there is so much of conflict is whether the present action of the accused can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. If that is held in his favour, the proceedings have to be quashed and the revision allowed or if it is held that the abusive language used by the accused has not been done by him in the discharge of his official duty, or while he was purporting to act in the discharge of his official duty the prosecution shall proceed. As already stated there is so much comment on this point in the judgments of the Privy Council, the Supreme Court and of the various High Courts in India. I shall first mention a few cases wherein it has been held that sanction was not necessary. I am mentioning many more cases that cited at the bar because of the importance of the point and apparent divergence of interpretation given in each particular case to the alleged acts of an officer removable by the Government only.

5. Now I shall first mention a few authorities where sanction has not been held necessary to run a prosecution against an officer removable only with the order of the Government. In a Supreme Court case reported as A.I.R. 1969 SO 686 a Deputy Superintendent of Police went in plain clothes and assisted a number of hawkers who were trying to take forcible possession of the complainant's land. The Deputy Superintendent of Police instead of preventing the wrongdoers from encroaching upon the complainant's land, threatened the complainant that he would arrest him if he interfered with the hawkers and directed the hawkers to enter upon the land.

In A.I.R. 1948 P C 156 an officer of His Majesty's forces fraudulently misapplying money entrusted to his care as public servant, it wa3 said that the act was not done by virtue of his office; Hence no sanction was necessary.

In A.I.R. 1967 All 519 a Police Officer kept the complainant in the police station and assaulted him to coerce him to make a statement Under Section164, Criminal P.C. No sanction was held to be necessary.

6. In A.I.R. 1965 Punj 192 a Superintendent of Police damaging property with a view to justify use of tear-gas and violence in dispersing a peaceful demonstration was held as not acting in purported discharge of duties. Hence no sanction was necessary.

In A.I.R. 1961 Ker 260 it was held that an offence Under Section 409 of Penal Code cannot normally be committed by a public servant acting in discharge of his duties or purporting to act in his official capacity.

7. In A.I.R. 1952 Mad 667 a Customs Inspector losing temper and assaulting respectable woman on suspicion of smuggling was held not to have acted in discharge of duty and hence not protected from prosecution without sanction.

8. In A.I.R. 1950 P C 26 it was held that the acceptance of illegal gratification by a public servant cannot be slid to be something done while acting or purporting to act in the discharge of his official duty and so no sanction is necessary in such cases.

In A.I.R. 1955 8 C 287 burning of thorn fence and outraging modesty of woman by sarpanch or panch during visit to spot by sarpanch or panch in pursuance of resolution of Panchayat, was held to be an offence not committed in discharge of performance of official duty so, on and so forth. There is again a whole host of authorities, which hold that sanction is necessary before launching a prosecution. Illustrative cases may be mentioned as under : A.I.R. 1957 Orissa 69 A.I.R. 1935 Pat 52 A.I.R. 1970 Raj 145 A.I.R. 1939 Mad 604 A.I.R. 1933 Sindh 165 A.I.R. 1955 SC 309 A.I.R. 1956 SC 44 A.I.R. 1955 SC 287 A.I.R. 1943 Cal 594 (SB) A.I.R. 1957 Raj 51 A.I.R. 1957 Madh Pra 230 A.I.R. 1959 Raj 12 and A.I.R. 1962 Bom 198.

9. In A.I.R. 1955 SC 287 their Lordships have held in Para. 18 of the judgment that:-

Now it is obvious that if 8. 197, Criminal P, C. is construed too narrowly it can never be applied, for of course it aid no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning.

In Para. 19 their Lord ships lay down as follows:-

Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established.

In A.I.R. 1955 SC 309 their Lordships have further expounded this principle and stated that: -.. If the acts complained of are so integrally connected with the duties attaching to the office 83 to be inseparable from them, then sanction Under Section 197 (1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required. The result seen is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.

In AIE 1948 PC 128 their Lordships lay down that:-

A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Govt. medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. A public servant charged with an offence Under Section 120B read with . 161, Penal Code cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held ....

In AIE 1949 P C 117 their Lordships reiterate the same principle.

In A.I.R. 1957 Orissa 69 the complainant was a lady whose husband was an, in-patient in the hospital in connection with some operation to his private parts. She alleged that the Assistant Surgeon slapped her husband, made some taunting remarks and after taking him to the operation theatre further assaulted him in consequence of which, the patient screamed aloud, but the Doctor roughly handled his testicles. It was held that the sanction to prosecute the Doctor was necessary. His Lordship Narasimham went so far as to say that the attitude of the Doctor might be unduly rough and rude, there may be some justification for reporting his conduct to his superior authorities, but a criminal case is clearly misconceived inasmuch as the act of handling the patient is done during the course of his official duty.

10. In A.I.R. 1939 Mad 604 the accused who was President of a Panchyat Court on objection to dictation of judgment by him to his clerk raised by the complainant who was also complainant in the cage before him got up from his seat abusing the complainant and slapped him on the cheek twice and on his protest unlaced his shoe, took it up in his hand, and raised it saying 'I will beat you with my shoe.' It was held, to prosecute him sanction was necessary.

11. In A.I.R. 1956. S C 44 their Lordships characterised the test laid down by the Federal Court in A.I.R. 1944 FC 66 as an unduly narrowing down the scope of the protection afforded by Section 197, Criminal P.C., and farther held that

the offence alleged to have been committed must have something to do or must be related in some manner to the discharge of official duty............ There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a stage when the trial proceeds on the merits. What the Court must find out is whether the fact and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

In A.I.R. 1935 Pat 52 it was held that: -

The offence, in order to attract Section 197, must be so connected with the official act as to form part of the same transaction.

12. In that ease the Deputy Magistrate while realising taxes objected to the complainant's standing near him in a particular manner and further used abusive language towards him and gave a hard blow on his cheek etc. It was held that Sanction was necessary.

13. In A.I.R. 1913 Cal 594 a Special Bench of that Court held that even an unjustified conduct on the part of the police officer would necessitate the procuring of the sanction before he could be prosecuted. The facts in that case were that on the arrest of four youths who were concerned in the disturbances and attempted to set fire to the Court building. The accused was alleged to have taken the youths in the direction of the thana but instead of taking them to thana went with his prisoners to his bungalow. There the complainant proceeded towards the prisoners and one of them was his nephew. Then it is alleged that the accused resented the complainant's insistence or making representation about the arrested persons and put an end to those insistent representations by an unprovoked and unwarranted assault.

14. In A.I.R. 1970 Raj. 145 a Municipal Administrator and Municipal Commissioner ordering collection of refuse but omitted to cause its removal from road, It was held that in order to prosecute them sanction was necessary as both these acts were directly related to their duties. In this authority a number of other authorities have been noticed.

15. In A.I.R. 1957 Raj 51 a Supdt. Police Officer called the complainant a 'Goondi' in presence of a Commissioner when a deputation waited upon the Commissioner complaining against the Sub-Divisional Magistrate in presence of the Bupdt. of Police It was held that sanction was necessary as this act was performed by the Supdt. of Police in the discharge of his official duty.

16. In A.I.R. 1957 Madh.Pra 230 the complainant was being examined as a witness in a certain case; while he was being examined, the Civil Judge used the expression 'Nalayak' and threatened the witness that he would be turned out and given a shoe beating. A complaint was lodged Under Section 501,1. P.C., against the Civil Judge but the same was not held competent in the absence of sanction.

17. In A.I.R. 1959 Raj 12 a sarpanch while holding a Court asked the complainant to get out of the courtroom. It was held in order to prosecute the Sarpanch sanction was necessary,

18. I have mentioned only some of the cases to give an indication of the principles upon which the question of applying Section 197, Criminal P.C. depends. As has been held by the Supreme Court in A.I.R. 1955 S C 287 the expression acting or purporting to act in the discharge of his official duty must be interpreted liberally otherwise strictly speaking there can be no case which can come within the scope of Section 197, Criminal P.C. The Privy Council has laid down the test that a police officer can only be said to act or purport to have acted in the discharge of his official duty if the act is such as lies within the scope of his official duty. The Patna High Court has said that it must be connected with the official act so as to form part of the same transaction so on and so forth. In fact whether the sanction of any public servant as described in Section 197, Criminal P.C. is covered by the protection given thereunder is essentially a question of fact to be determined by all the circumstances of the case. No abstract principles can be laid down which will apply to all cases. In deciding such oases Courts have to keep in mind variations in the temperaments, approach to a certain problem and reacting to certain situations by different individuals. Borne people have more control over their feelings, others are more extrovert. The conduct of each has to be dispassionately analyzed and understood. The same principle applies to Judges also, A resume of the above authorities would indicate some of the decisions seem to be irreconcilable with some others; this difference in approach can also he explained on the same hypothesis.

In A.I.R. 1957 Orissa 69 for instance even slapping, pulling of private parts and abusing a patient have been held to be within the discharge of an official duty of a Doctor, la AIB 1939 Mad 601 when the Panch abused the complainant, slapped him on his cheek and took out his shoes to administer a beating to him, his action was held to be protected. Similarly in AIB 1957 Madh-Pra 230 the judge made insulting remarks against a stranger and directed him to be turned out of the court, the protection under this Section was granted to him. These are some of the extreme oases. The oases which have held that sanction is not necessary are usually those oases where the act is clearly beyond the scope of the discharge of the duty of the Public Servant as such. For instance cheating, cases of embezzlement and a conspiracy by the Chairman of the Municipal Board with others to commit criminal breach of trust, are acts which are beyond the scope of an authority of either of them. In A.I.R. 1969 S 0 686 where the Dy. Supdt. of Police dearly instigated the hawkers who were committing an offence by encroaching upon the property of the complainant and threatened the complainant and directed the hawkers to take forcible possession, it was rightly observed that the Dy. Supdt, of Police was not acting within the scope of his official duty.

19. In the present case, keeping in view all the authorities on the subject the following facts emerge:-

(i) that -admittedly the complainant was alleged to have committed some embezzlement; first he was asked to deposit Rs. 3,040/- which he did as the price of the goods found short:

(ii) Then according to the complainant him. self he was further asked by a notice to deposit Bs. 4,200/- again as due from him as the price of certain articles alleged to have been misappropriated by him :

(iii) That the complainant went with his ob. Sections against this notice to deposit There the accused lost temper and said. 'Ma jawe Cbor ajate Hain'. (Original Script in Urdu transliterated.Ed).

This would be an act more or less connected with the official discharge of his duties though it may have been committed in excess of the same. An officer, as he was being confronted by a person who had committed criminal breach of trust with respect to Government goods may have lost his temper for the time being and addressed the complainant as a CHOB. In my opinion this case is far stronger than the case of the Doctor in AIB 1957 Orissa 69 or AIB 1939 Mad 604 or AIB 1943 Cal 594 (SB) and is more or less similar to AIB 1957 Madh-Pra 230 or AIB 1957 Raj 51. Therefore in my opinion the complainant has acted in a hypersensitive manner in bringing the complaint Under Section 504, R. P C. against the petitioner.

20. That is one aspect of the case. Other, wise also I do not think any case under 3. 501, E. P. O. is made out against the petitioner. In the complaint in para No. 3 which is the relevant para. the complainant simply says that when he presented objections before the accused he tore them, abused him and simply Baid. 'Keh ma jawe chor ajate Hiin'. (Original Script in Urdu transliterated-Ed).

21. The complainant does not state that the complainant was addressed as CHOR or Majawe. It may be general statement made by the accused at that time. The complainant in his statement Under Section 200, Criminal P.C. has not even stated this thing. Alt that he says about thia incident is 'Keh ma jawe Chor ke jate Hain'. (Original Script in Urdu transliterated-Ed). Similarly his witness Hassan who was also examined Under Section 200, Criminal P.C. states the same thing 'Keh ma jawe Chor ke jate Hain'. (Original Script in Urdu transliterated-Ed). Neither the complainant nor his witness do corroborate the allegations male in the complaint itself. All the three put together the whole prosecution story seems to be meaningless and even the allegations in the complaint appear to be impersonal and not directed against the respondent-complainant in particular.

22. From this point of view also no case is made out against the petitioner for being prosecuted Under Section 501, &. P.C.

23. The result is that the complaint pending before the Sub-Registrar, Judicial Magistrate Ist Class, Jammu against the petitioner is hereby quashed and the petitioner acquitted.

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